The
Decision to Prosecute Drug Offenses and Homicides in Marion County, Indiana

Chapter
2

Public
Commentary

STATEMENTS
FROM MARION COUNTY PROSECUTORS

Two
Marion County prosecutors testified before the Advisory Committee: Scott C.
Newman (R), the current Marion County prosecutor; and Jeffrey Modisett (D),
former Marion County prosecutor. Scott Newman has served as Marion County
prosecutor since 1995, winning reelection in 1998. Jeffrey Modisett is currently
the attorney general for the state of Indiana; he served as Marion County
prosecutor from 1991 to 1994.

Scott
C. Newman, Marion County Prosecutor

“I
think after thorough study [this Committee] will find unequivocally that
prosecution decisions are not tainted by issues of race. The focus of your study
. . . includes decisions whether to charge or not to charge. You want to know
whether any racial bias, explicit or implicit, direct or incidental,
characterizes those decisions.

“Let
me begin with the issue of violent crime, specifically, the unacceptable number
of homicides in the last decade in Marion County. The first thing you should
know is that the homicide problem itself has its own disproportionate impact
upon the African American population of this community.

“In
1998, 73 percent of homicide victims in Marion County were African American. If
you look just at the Indianapolis Police Department’s jurisdiction and their
roughly 130 homicides in 1998, some 81 percent of those victims were African
Americans. These figures represent roughly triple the representation of African
Americans in the general population. The disproportionate impact of violent
crime on young African American males in Indianapolis has held true over time,
as was noted in a study published by the National Institute of Justice in
Government of 1979.[1]
Of the eight major U.S. cities studied there, Indianapolis showed the highest
overall disproportionality of black male homicide victims age 18 to 24 during
the years 1985 to 1994.

“Too
many African Americans are being victimized by violent crime in our community,
and they are being victimized far out of proportion to their numbers in the
general population. They are dying young and the perpetrators of those violent
deaths have also disproportionately and overwhelmingly been African American as
well. These are facts which any right-thinking person in our city, black or
white, bears with deep sadness and even shame.

“Probably
no one in this city, other than those who have personally suffered the loss of a
family member, experiences the devastating realities behind these homicide
numbers more poignantly than the county prosecutors. In the living rooms, in the
churches, in the funeral homes, at the crime scene, on the streets, and in the
courtrooms and police stations of this community, I and my colleagues are the
legal system, fellow sufferers with the angered, bewildered, and bereaved family
members of those who have been cut down before their time . . .

“The
stunning disproportionality of black victimization by violence I have described
previously also means that as prosecutor in this community, I literally spend
the majority of my time and energies in service to African American members of
this community, and that is truly how I view my work in bringing justice to
violent crime victims, most of whom are African American. I am in their service.
And while the well-to-do on occasion fall victim to violent crime and more often
to property crime, it is largely among the economically disadvantaged and the
downtrodden that we spend our time and do our work. We cannot do our job well if
we do not care deeply about the least of these.

“Despite
all of the advances in the technologies of criminal investigation, such as the
use of DNA analysis, the best way we have to solve crimes and bring justice
continues to be simply this: People come forward and tell us what they saw and
heard. People come together in their neighborhoods and decide they have
something to defend. They decide to drive out drug dealers rather than
tolerating or even glorifying local drug dealers. Getting needed cooperation
from witnesses germinates best where there is a fertile soil of support and
positive peer pressure in the affected community, and in many cases that has
been increasingly hard to come by.

“The
reluctance to come forward results from some combination of fear of retribution,
lack of adequate resources for witness protection, and mistrust of the justice
system. That is one reason why impartial studies and frank discussion of issues
of race and justice is so important and why fear mongering and racially charged
rhetoric is so destructive. If people are given the information that they need
to be assured that the system is trying to help them, they will be encouraged to
participate, to cooperate with the police to serve as witnesses and indeed as
jurors. If they are told irresponsibly that the system itself is the problem
rather than the criminal, they will find reason not to participate and criminals
will go free.

“Let
me turn now to the mechanics of the charging decision. [Regarding] narcotics
cases, nearly all of the felony level drug charges in Marion County are screened
by a deputy prosecutor with 20 years’ [experience] . . . In meetings and
discussing these cases with detectives, the areas of inquiry are simply: What
drugs are involved in the case? What quantity by weight? Who can be proven to
have possessed them and for what purpose? For delivery or dealing or for
personal use? These are the points of discussion because these are the
determinants as to what level of charges can be lodged under Indiana law.
Considerations of race, creed, color, gender, sexual preference, and ethnicity
play no part in those discussions.

“Dealing
cocaine or possessing with intent to deliver cocaine over 3 grams translates to
a class A felony. Dealing under 3 grams means a class B felony. Possessing for
personal use, depending on the quantity can result in a class C or D felony
charge, and it should be noted that under Indiana law there is no distinction
made between crack cocaine and cocaine in powder form. Possessing marijuana over
30 grams is a D felony, under 30 grams a class A misdemeanor, and so forth. The
difficulties lie principally in determining who can be said to have possessed
the drugs when the evidence is seized during the search of a house or car with
multiple occupants. They are known as constructive possession cases.

“Another
fertile area for discussions at charging time is whether any evidence exists to
justify a charge of intent to deliver or intent to deal. Those discussions
invariably revolve around the quantity of drugs seized, the method of packaging,
and the presence or absence of other evidence tending to show the carrying on of
a drug business as opposed to the satisfying of the personal craving of an
individual drug addict. For the nonviolent addict, within the last few months my
office has participated in the successful implementation of a federally funded
drug treatment court allowing even indigent defendants the opportunity for
long-term intensive outpatient drug treatment in partnership with Fairbanks
Hospital. Initial eligibility determinations for this program are now also being
made in my screening division.

“Rather,
the most common concern voiced is that lower level crack cocaine dealers are
disproportionately targeted for arrest by law enforcement, that those dealers
are overwhelmingly African American, and that higher level suppliers (often
presumed to be white or Hispanic) escape detection. These issues involve
primarily the policies and police strategy and are beyond the scope of what I
understand to be your inquiry.

“[Regarding
homicides,] the charging decisions . . . are made in a section called the
prosecutor’s Screening Division. The lawyers in this division meet with
detectives on a daily basis and are briefed on the results of police
investigations. They ask questions about the evidence, make suggestions as to
further evidence that might be gathered, and are then called upon to render a
legal opinion as to the appropriate charge or charges, if any, to be filed. They
then draft those charges for filing with the court . . .

“The
charging discussion in the homicide revolves around the following issues: First,
identity. Is there sufficient evidence to identify the killer? Is the evidence
credible? Can it be corroborated by physical or other circumstantial evidence?
Can other suspects be excluded?

“Second,
intent. What is the evidence as to the state of mind of the killer? Was it a
knowing or intentional act with some evidence of deliberation or motive which
would justify a murder charge? Was it the act resulting from legal provocation
indicating a voluntary manslaughter charge? Was it a reckless act, meaning that
involuntary manslaughter or reckless homicide should be filed, or merely a
negligence or accidental occurrence which would result in our declining to file
any criminal charge?

“Lastly,
any anticipated defenses. Can the defendant raise a credible defense on the
evidence, such as self-defense or insanity? While the decisions growing out of
the foregoing questions can be complex and involve many related discussions of
investigative tactics, the framework of the analysis is simple and is
exclusively what I’ve described above.

“Considerations
of race, creed, color, gender, sexual preference, and ethnicity play no part in
those discussions. On occasions, we have heard the allegation that there exists
racial bias in our application of the death penalty. Without going into a
detailed decision of the death penalty, the record stands with my having
obtained death sentences on four individuals during my tenure. Three of them
white, one of them black, all of them deserved.

“[The
Committee] may hear from some vocal critics in the community about some
difficult charging decisions in individual controversial cases. Such decisions
are the stuff of everyday for major metropolitan prosecutors, and I do not
shrink from those decisions. In one case, a black male who allegedly had stolen
some tools was pursued by a neighborhood resident who was white. There was an
exchange of gunfire, and tragically the alleged tool thief was killed. The
police elected not to make an arrest on the scene, deciding instead to present
the facts to my office for a charging decision in light of a claim of
self-defense. On being presented with the case, my only decision and only
participation in the case was to stand aside and ask for an appointment of a
special prosecutor owing to my personal acquaintance and service on a nonprofit
board with the wife of the shooter. A well-respected prosecutor from another
county presented this matter to a grand jury, entirely without my participation,
and a racially mixed jury returned a no bill in that case.

“In
another more recent case, a bail agent was searching the home of an individual
who had jumped bail. When the bail agent discovered the fugitive in the opening
of a basement crawl space, he was startled by the movement and discharged his
weapon, killing the fugitive. Again, in light of the claim of self-defense, the
police did not make an arrest on the spot, a decision which rankled some leaders
of the African American community. The police presented the facts to our office.
We determined that the fugitive was unarmed and that the use of deadly force was
not justified under the circumstances. We charged the bail agent with reckless
homicide. Under the law of Indiana, this was the only correct charging decision.
I stand by it and hope to convict the shooter and send him to prison. The tough
job of making that charging call reflected only the remorseless facts and the
law, not any callousness on our part or any downgrading of the value of the
human life that was tragically and unlawfully lost.

“Finally,
much has been said about our restrictive plea bargaining policies in homicide
cases, and I am proud of those policies, but relatively little has been noted as
to the protection such policies actually afford the defendants. Our
truth-in-plea-bargaining approach means an ethical, searching inquiry resulting
in an appropriate level of charges at the outset, then requiring persistence on
the part of our deputy prosecutors in obtaining a conviction of lead charges
which we have determined to be the lead charge that most appropriately
encompasses the defendant’s actual culpability; this is what builds public
confidence while at the same time being fairer to defendants . . .”[2]

Jeffrey
Modisett, Former Marion County Prosecutor, and State Attorney General

“I
am the attorney general [of the state of Indiana], but I am here to discuss my
tenure as Marion County prosecutor. I think a forum like this provides a great
opportunity for outside parties to come in to scrutinize the criminal justice
system and how it performs here in Marion County and throughout the state. This
type of oversight will, I hope, provide meaningful suggestions for improvement
of the criminal justice [system] that criminal justice policy makers can follow.
I think the topic [the Committee] is focusing on today is as relevant as 20 or
30 years ago. I will comment on both some of my personal observations as Marion
County prosecutor and discuss some of the steps that I took to address some of
the issues.

“Being
very candid, in the wake of the Mike Tyson trial, I felt that there was a need
in our community to address certain perceptions that developed with regard to
whether or not the system as a whole was being fair to minorities. As a result,
I put together a group called the Fairness in the Criminal Justice System
Community. The prosecutor’s office wanted to know whether this issue was
reality or perception. So our office undertook to study each point in the system
where a discretion was exercised to determine if looking at that point of
discretion, a disparate impact existed based upon race or ethnicity or any other
inappropriate reason.

“Unfortunately,
my term came to an end before any report was published and I do not think that
anything happened afterwards, but I can tell you what I recall from our
findings, although there is nothing written about it. Early preliminary findings
were that in Marion County—to the best that we were able to find—there was
no finding of disparate treatment based on race throughout the criminal justice
system except at the point of the intake. That is, once a defendant entered the
system, we could not discern any statistically significant difference in
treatment based on race. We could not find any overt discrimination in the
system, and we could not find any statistical discrimination. But there were a
disproportionate number of minorities who entered the system. Now, we didn’t
make any finding, not even preliminary, with regard to any potential causes for
this phenomenon . . .

“So,
I will also comment on . . . observations I made based on my experience. First,
concerning the perception of racial bias in the prosecution of drug offenses,
many of these perceptions existed when I was prosecutor and they continue to
this day. I think it would be useful for policy makers such as you to scrutinize
and report on these perceptions.

“I
think there is a perception of racial bias in the prosecution of drug offenses,
especially because a large percentage of defendants are African American and
few, if any, of the prosecutors involved in drug cases are African American. As
many of you know, a screener in the prosecutor’s office determines whether a
drug case is filed at all, whether a possession case is filed as a possession
case or whether it’s filed as an intent to distribute with the higher
penalties that would be attached, or whether a case is filed when the search
that found the drugs might have violated the Fourth Amendment. All of these are
discretionary judgment cases that are made by the screener.

“The
Marion County Prosecutor’s Office has few African Americans that screen major
drug offenses. There are few African American deputy prosecutors assigned to the
drug court. So, my first point is one of perception, and that is if you have a
disproportionate number of minorities that seem to be going into the drug court,
the perception would certainly be enhanced as far as the credibility of the
system if you had better representation of minorities in the system.

“The
next observation I would like to make involves drug kingpins. I think there is a
perception the prosecution has focused on the dealer and not on drug kingpins.
In the criminal justice system, assume that the dealers are predominantly
African American when drug kingpins who finance and profit from the drug trade
are predominantly white. Police are always more likely to arrest a street dealer
than the drug kingpin. That’s just, again, that has nothing to do with their
intent. That has to do with the reality of the situation. It can be explained by
saying that the dealer will sell drugs to strangers, including undercover
officers and informants, while drug kingpins only sell quantities to people that
they know. Some might suggest that the street drug dealer is to be investigated
and prosecuted by state and local officials while the drug kingpins are to be
arrested and prosecuted by federal authorities; perhaps that’s true. A
prosecutor could suggest more aggressive tactics to catch the drug kingpins like
the use of electron technique surveillance.

“My
next observation deals with crack cocaine versus powder cocaine. I think there
is a perception that the treatment of crack versus powder cocaine by prosecutors
could appear to be racially motivated. The conventional wisdom says that African
Americans possess crack cocaine and whites more often possess powder cocaine.
Federal sentencing law requires a disparity in the sentence of crack cocaine
offenses as opposed to powder cocaine, and the sentencing for crack cocaine
offenses is much higher than for powder. Indiana has the same sentence law for
crack and powder cocaine and we don’t provide for disparity in the sentence
for crack and powder, but it would be interesting to evaluate whether or not a
prosecutor’s office nevertheless offers harsher sentences for crack cocaine
than powder cocaine during plea negotiations.

“Next,
drug roadblocks. I think there is a perception that drug roadblocks are focused
on the inner-city neighborhood which, even though it is less true than it used
to be, still they are predominantly in African American communities. The police
are going to use drug roadblocks. Some of these roadblocks might want to focus
equally on suburban areas and more predominantly white neighborhoods. They
should be used, not used by city police, but also by the sheriffs and other
counties as well.

“The
fact is, however, that in the state of Indiana drug abuse is worse in the rural
areas than it is in the urban areas. I know that is counterintuitive, so I
should repeat it. In Indiana our drug problem is worse in rural counties than it
is in metropolitan counties. The only drug that we found more prevalent in the
cities was marijuana. Almost every other drug was more predominant in rural
communities. So we need to deal with facts, and our criminal strategies and
prosecution strategies must follow those facts.

“I
would also speak about two efforts that I undertook during my time as Marion
County prosecutor that I think have direct relevance to this Committee involving
the study of the prosecution of drug offenses and homicide prosecution. The
first is a report that we were able to complete, subsequently called the
Tramberg Commission on Homicide in Marion County, 1991.

“Nineteen
ninety-one was a record year for homicides in Marion County, which for various
reasons has been surpassed a few times since then. Regardless, at that time just
as now, homicides in Marion County was a real concern. As a result, I put
together a blue ribbon panel headed by Judge John Tramberg. [The prosecutor’s
office] made observations with regard to the analysis of who were the people
that were committing homicides in Marion County, who were the victims, and what
those relationships were . . .

“The
Commission found that model conflict resolution programs should be initiated in
the community . . . My predecessor in the attorney general’s office had
started a program called Project Peace, a program where young people in the
schools are taught to mediate conflicts. There are [student] mediators in the
school [and] when there is a dispute in the school, students go to the mediators
rather than to teachers or adults who might cause the other side to feel put
upon . . .

“Second,
there was a recommendation that environments that encourage violence should be
eliminated from the community. This covers many things. If there are certain
environmental factors that lead to aggravated assault, that’s another point I
should make. One of the first observations we made was that homicides were
simply aggravated assaults gone bad. So we had to look not only at homicides,
but also at aggravated assaults and how they were being committed because
oftentimes the only difference is whether or not the person got to the ER in
time to be revived as opposed to whether or not they died. So we wanted to make
sure that the community looked at what was in its own environment that caused
some of these problems and what could be dealt with.

“Three,
structured activity for young people should be developed and implemented in the
community. That is self-evident now, but again, this report was a number of
years old now.

“Four,
members of the community should be encouraged to participate in reclaiming their
neighborhoods and keeping them safe, again making sure that the police and
prosecutors work directly with the members of the community to try to solve
their own problems.

“Five,
young persons’ access to guns should be reduced. Again, this is not in any way
addressing the Second Amendment argument. Our issue was to try to make sure that
we kept guns out of schools, kept guns out of the hands of children, and various
programs can be implemented to do that.

“Finally,
communication among law enforcement officers and between law enforcement
agencies and the community should be employed. Those were the recommendations in
1991, and I think they ring as true today as they did then.”[3]

Statements
from the Community

Ten
individuals addressed the Advisory Committee on their perceptions of fairness
along racial and ethnic lines regarding the decision to prosecute drug offenses
and homicides. They included Rozelle Boyd, minority leader of the Marion County
City-County Council; Monica Foster, an attorney with the law firm Hammerle,
Foster, Allen & Long-Sharp; Lilberdia Batties, attorney-at-law; Lionel T.
Rush, pastor with the True Victory Church of God; Mmbja Ajabu, member of the
Nation of Islam; Roderick E. Bohannan, president, NAACP Indianapolis chapter;
George H. Neal, Indianapolis Urban League; Toby Miller, Greater Indianapolis
Pro­gress Committee; Tyrone Chandler, Indianapolis Weed and Seed Program; and
Larry Vaughn, who addressed the Committee during the public session.[4]

“I
am Rozelle Boyd and I am the minority leader of the Indianapolis City and County
Council. I am a lifelong resident of Indianapolis, Marion County, and have some
familiarity with the community. I have not spent many hours going through the
prosecutor reports and that kind of thing, but I have been in the community for
a long, long time and have had an opportunity to make some observations and
receive some observations and to develop some perceptions and perspectives about
what some of the issues are and the perceptions [of the community].

“Let
me say then, having said that, that there is a general perception in the
[minority] community that perhaps persons working with the prosecutor’s office
are not really in the corner, if you will, of the minority community. And I
would underline perception, because in many instances you would not necessarily
be able to follow that up with factual information. But, as has been suggested
around the table, in the sense that perception is in a sense reality, then it is
something that very definitely has to be considered.

“I
was very interested in listening to some of the comments made by the attorney
general this morning, particularly when he indicated that there is some
significant evidence of disparity at the intake level. But then when you carry
the statistics and the studies beyond that point, the consistency does not
necessary carry through. Well, whether the consistency in fact carries through
or not, the fact is that the perception carries through.

“So
if you are dealing with a population of people who at the intake level are aware
that there is a disparity, they see that and it permeates the whole system.

“There
is also a perception in the minority community that the homicide problem does
not receive the attention it should.

“There
is also the perception [in the minority community] that there is significantly
more attention being given to incarcerating violators of [laws]. I am talking
about building additional prisons, that there is more attention being given to
this than to preventative measures or to treatment measures. And I think that
for the most part the information generally will bear that observation out.

“Then,
there is another perception . . . that law enforcement officers for the most
part want to stay out of certain inner-city communities where there is a
relatively high homicide rate, where there is high drug activity. I would
suggest to you that as I have had an opportunity to talk with and to meet with
many community and neighborhood organizations there is a very popular perception
that there is an awareness of the activity of crack houses but no major effort
put into putting them out of business but rather for the most part containing
them to those areas.”[5]

Monica
Foster, Attorney, Hammerle, Foster, Allen & Long-Sharp

“My
practice focuses exclusively on representing persons charged with serious crimes
or convicted of serious crimes on appeal. A large portion of my practice over
the last 15 or 16 years has been devoted to representing persons charged with or
sentenced to the death penalty. Those cases I accept on a public defender
appointment basis because virtually none of the individuals who are charged with
the death penalty throughout the state of Indiana have the funds to hire private
counsel.

“There
is a perception in [the minority] community that race has played a role in the
death penalty charging decision for quite some time. So one of the things that
our firm did as part of its representation of [a particular person] was to look
at the charging practices by this particular prosecutor to determine if, in
fact, our perceptions were accurate.

“So
we tracked cases [involving the death penalty] to see what the plea posture was.
In other words, did the prosecutor at any point in time offer a plea bargain for
something less than death? . . . There were six white defendants and eight
African American defendants . . . Of the six white defendants charged with the
death penalty, Prosecutor Newman offered a plea for life in five of those cases,
. . . which computes out to 83.3 percent. Of the cases where an African American
was the defendant, the statistics completely flip flop. There were eight African
American defendants charged with the death penalty. Prosecutor Newman offered a
plea for something less than death in only one of those cases. And in seven of
the cases, the African American defendants have been required to go to trial
with the death penalty hanging over their head. Only 12 percent of the African
American defendants are offered life pleas.”[6]

Lilberdia
Batties, Attorney

“My
name is Lilberdia Batties and I am an attorney practicing here in Marion County.
Primarily I do criminal work as well as civil work. I have had occasion to
represent pro bono and as private counsel in Marion County Superior Court. One
of the things that strikes me as odd when I go down there is the fact that 95
percent of the defendants you see in drug court are black. In all of the time I
have been there . . . I have only seen one white defendant, which seems odd that
the only people in Marion County that are committing drug crimes are black
people, because I know that drugs affect the entire community.

“Further,
it seems to me that—and this is just what I get from clients and what they say—that
even if they do not have anything on them, police officers harass them.”[7]

Lionel T. Rush,
Pastor, True Victory Church of God

“This
is a grave subject that we take up today, and I think it must be met with an
equal portion of seriousness. I pastor the True Victory Church of God and Christ
here in this city and I have been involved in human rights and civil rights as
an activist and I have great concern about the issues that you raise.

“Notions
of disparity and inequality as it were is ubiquitous and pervasive throughout
all of the whole criminal justice complex from the standpoint of many in the
African American community. That is outside of the police department and inside
of the police department. Outside of the criminal court and inside the criminal
court. It is very, very pervasive.

“This
is a pervasive problem that all African Americans face. When whites [receive]
preferential treatment it usually disintegrates into unequal treatment for
blacks.

“I
will share with you a portion of a press conference that [recently] took place,
and it was directed in some ways at one of your previous guests this morning . .
. It [will give you] the breadth and the depth of some of the things [other]
speakers are saying in terms of the black community.

“We
come to speak to an ethical or more so a deep-seated concern about how the
office of Marion County prosecutor is run administratively. It must be said at
this time that this is not brought on by any political motive. It was a fair
notice in equality. The effectiveness of this obviously is questionable,
especially the procedure and administration of this office, leaving many of the
community with grave concerns. The following list raises some of the questions.
This list is not exhaustive, but only indicative of one, the death penalty under
Prosecutor Scott Newman’s auspices. The death penalty has been filed for 13
individuals; five were white, eight were black. All of the five white persons
were granted a plea bargain. A plea bargain was only offered to one black and
that was as a result of a court ruling that made the death sentence invalid. The
community must now question what seems like obvious disparate treatment in the
administration of the death penalty cases where no whites die in this context.

“Number
two, there’s a great concern about the capricious and nebulous nature which
the grand jury system is employed. Concerns focus on the lack of protocol
surrounding when it is appropriate for grand juries to be called, which cases
grand juries should hear, who determines who comprises the grand jury, and from
what part of the community those selected live. This leads the community to
think that there is foul play when the grand jury is convened.”[8]

Mmbja
Ajabu, Member, Nation of Islam

“I
want to talk about a subject that is so serious that it is actually costing
people their lives because they’re black. If you want to know how something is
going to act or perform in its existence, then what you need to do is to look at
how it was created and the environment in which it thrives.

“When
you’re talking about the death penalty, here in America, I advance the
argument and actually have that the death penalty comes out of trying to control
a racist attitude . . . We in this city at this very time can have a prosecutor
who has filed a death penalty 13 times, eight times against black people and
five times against white people . . . I am saying that that situation that
exists right now is part and parcel of the process to whereas that the death
penalty initially started.

“If
you look at the death penalty and its history here in America it actually
started in 1636 with the Massachusetts Bay County; those were the first laws,
written laws in America. Of those statutes, they had one statute that whereas
that a person could be killed by the state for maybe stealing. If you understand
that in 1636 this was post when the slave trade started, which was about 150
years before then, people were stealing slaves; white people were stealing
slaves. Some collusion of black people, but those people who were taking part in
the theft were not subject to the penalty to whereas here in America if a white
person or any person stole a white person, a white man, for that act, you could
be killed.

“So,
in essence, what that says, if you steal a black person, work him to death. If
you steal a white person, then we’ll kill you for that because you cannot be
stealing white folks.

“This
country is about being right . . . Men and women who are concerned about what is
right, not necessarily what is legal, should stop this racist practice that has
been racist from day one. It is racist now and will continue to be racist
because when it started it was racist, and it is going to continue to be racist
if it grows any more.”[9]

Roderick
E. Bohannan, President, NAACP Indianapolis Chapter

“African
Americans do feel the system is unfair. But let’s presume that every official
speaking this day is an honorable person and the issue is not whether or not
intentionally there is racism. Rather the question becomes whether the
institution has put safeguards to do a check and balance so that it begins to
look as though to make sure the question of fairness is across the board.

“What
happens if the new prosecutor comes in and recognizes that there is, in fact, a
problem at the front end. The question I have is, what have you done beginning
to fix that? From the African American community, I would say nothing.

“Let
me give you an example: the decisions to overcharge. The prosecutor . . . will
tell you that the young African American males who are overcharged have some
sort of record with judges and there may not be a conviction. But if there pops
up in the investigation that they in fact have some relation to drugs, they get
overcharged.

“Our
community has a problem with that. If I have a new trial, I should be charged
for the new crime and not punished for past crime.

“Something
else not discussed by the prosecutors was the grand jury . . . What I have been
told is that there has never been an African American as a prosecutor to the
grand jury. I also have been told they only have one black police officer who
have ever been assigned to the grand jury in 16 years.

“You
have been told that the prosecutor’s office has eight prosecutors involved in
drug cases and two African Americans, but the two African Americans are in
misdemeanor court not in felony court . . . There is an attitude [about] these
prosecutors . . . and they say point blank—and it’s just not black and
white, Gestapo kind of mentality.

“If
you want the community to feel the criminal justice system is fair, the
prosecutors have to be perceived as fair-minded people.

“The
cases sent to the federal court need to be examined because . . . you will find
the majority of cases that are referred to the federal court are small weight in
terms of what the drugs are.”[10]

George
H. Neal, Indianapolis Urban League

“The
Urban League is as concerned with homicide and drugs in our community as anyone,
particularly as impacted the African American community. But it is our opinion,
while not scientifically measured by survey or whatever, that there is a great
general perception in the African American community that African Americans are
singled out and are targeted by prosecution at a higher rate than whites.

“Now,
perhaps you can call this prosecutorial profile, and there are concerns in the
African American community about selective prosecution. The question becomes, is
this real or perceived? Hopefully this study will answer some of these important
concerns. Is it justice or is it just us?

“In
a recent article in the Indianapolis Star
titled ‘Prosecutors Linked to Unethical Tactics’ and this is Associated
Press coming out of Chicago article. I’ll read you the first couple of
paragraphs: ‘Prosecutors throughout the country have key evidence leading to
wrongful convictions, retrials, and appeals that cost taxpayers millions of
dollars according to a Chicago Tribune analysis of thousands of court
records in homicide cases.’ It goes on to state: ‘Winning has become more
important than doing justice.’

“Let
me close with this . . . prosecutors take over the cases after the arrest,
deciding whether or not to press charges and what sentence to insist upon in the
plea negotiations. Therefore, plea negotiations become a very important part
that you need to take a good look at. More than 90 percent of criminal
convictions are obtained as a result of guilty pleas. Here, too, the discretion
of prosecutors again is greater for a less serious offense.

“We
submit that within this context a system of overt discrimination and bias has
been created whereby similarly situated black and white people are treated
differently, and a covert discrimination where policies have been implemented
that if employed in a color blind fashion will apply principally to black
Americans. This system lends itself to subtle subliminal racism where black
defendants are stereotyped, disregarded, and dehumanized by judges and
prosecutors where we see bias introduced in the system at least obvious levels
where an individual’s discretion determines who gets arrested, who gets
prosecuted, how the guilty are sentenced, and who gets mandatory sentences.”[11]

Toby
Miller, Greater Indianapolis Progress Committee

“I
do not submit that I am the empirical giant, but I may be able to add some light
to the perceptions that exist out in the community and why they are what they
are. The status of this whole debate is that the perception in the community
around law enforcement . . . this judicial system and the state of race
relations in that regard are at a slow boiling point.

“I
think perceptions are as powerful as facts, and sometimes the truth is that
racism is at the decision-making level and influences how people and certain
organizations that make the decisions respond in the ways that they do. I also
submit that racism is not always there. I think it is unfortunate that it is all
too easy playing to race. So, sometimes it is not fair.

“I
do not know if Prosecutor Newman or any prosecutor is going to be the ring
master at a dance between law enforcement and the community, and so his
challenge is to try to convince folks that he and his office are above board,
honest, straight forward, ethical, and on balance not necessarily recognizing
race as a variable in how they make decisions. I submit that is rather naďve,
but I think many, including the prosecutor, try.

“I
think that one of the major failures in this community is that there is a lack
of engaged and effective leadership at the point of top decision makers—the
prosecutor, the mayor, the judges, and also the various police chiefs and
sheriff—in terms of how decisions are made.

“Additionally
I think there is a case of situational ethics. The squeaky wheel gets the
grease, but unfortunately I think in balance the African American community and
the minority community find them getting greased up too much.

“I
think there is also a lack of engaged, effective leadership within the African
American community. I think it’s done a disservice within our entire community
in the sense that some folks make its industry on the suffering of African
American folks and would make it their business to continue to exploit that
misery that is existing in the community without necessarily providing adequate
working service to remedy that situation. I think that’s been a miserable
condition in our community, both African American and otherwise.

“Ultimately
what we need to do is recognize the law needs to be applied fairly and equitably
all the way across the board.”[12]

Tyrone
Chandler, Indianapolis Weed and Seed Program

“Most
of what has been said, I agree with, but I look at it with a different situation
because of the initiative that we have going on the near west side and other
sites called Weed and Seed in which we have active participation with law
enforcement agencies. But just looking at stereotypes and perceptions,
particularly ones used by the media, makes me believe . . . that the media plays
a big role in some of this stuff because of the perceptions that they put out
there about different groups of people.

“What
we are trying to do is to look at intervention and prevention programs with the
young men growing up . . . In talking to youth we found out that there is a big
dislike for police officers and law enforcement . . . Those kids early on can
see officers and others in other situations outside of making the arrests.

“What
we try to do is to get younger people involved in leadership positions in their
community. So, it’s a natural occurrence as they get older they assume more
responsibility. They start to find out how the system works and then also to,
like was mentioned earlier, try to put the right people into place so that as
things occur we have some people or we have people there that understand and can
help us get through these difficult things.”[13]

Larry
Vaughn

“My
name is Larry Vaughn, a concerned citizen. The reason that I am here is to
contradict Mr. Newman’s testimony this morning, which I feel was nothing but
no more than a testimony of lies and deceit. He has commonly used the citizens
of Indianapolis to scapegoat things and cover his racist policies, which just
pervades his office where blacks are concerned.

“We
touched on a lot of different items here today, but not a syllable about the
real underlying racism in the policies of his office. Mr. Scott Newman has a
policy in his office that he uses in our community in which the community in
which I live which is primarily black and underprivileged, illiterate people who
are out in the cuff just trying to scrape to make it.

“What
Mr. Newman does is he will let these drug dealers . . . sell dope as long as
they can . . . [The prosecutor] is allowing the most highest drug dealers, the
ones that have turned over the most dope, to come in and out of jail like a
revolving door.

“Eighty-five
percent of the cases [in drug court] are cases in which a sting was the way that
people got there. Sting cases happen where [the prosecutor] has a good case on a
drug dealer that is known in the community, and [the prosecutor] tells him to go
and get me two or three other people and in the process you sell this kilo of
dope for me. So now there are four or five dope dealing cases and [the
prosecutor] has his cases, and these drug dealers are just in and out of jail
like a revolving door. And you know that their supplier is not going to give
them dope if they’re just in jail because they’re going to figure that they
got a tail on them.

“So
what I’m telling you about is [the prosecutor] should not be able to be in
that office down there, letting his racism and hatred color that office and ruin
lives and they are going to be the ones that pay the price because of who Scott
Newman is. Because when the drug dealers get through with the blacks and poor
and underprivileged, they’re not going to stop there.”[14]

[1]See U.S. Department of Justice, National Institute of Justice, The
Study of Homicide in Eight U.S. Cities, I.J. Interregional Research
Project,CJ 167263 (1979).

[14]
Larry Vaughn, Transcript, pp. 230–39. Marion County Prosecutor Scott C.
Newman stated in his letter to the Indiana Advisory Committee that Mr.
Vaughn has been prosecuted by his office twice during his tenure, and that
the Marion County Prosecutor’s Office had obtained convictions of Mr.
Vaughn on at least four separate occasions in the 18 years prior to the
Newman administration. (See letter of Scott C. Newman, May 12, 2000,
in the appendix.)